TERMS AND CONDITIONS
EMG Productions Inc. clients are subject to the following terms and policies in regards to work-for-hire projects.
GENERAL AGREEMENT – This document defines the terms and conditions of our working relationship. All projects or services that EMG Productions, Inc. or EMG Websites (DESIGNER/DEVELOPER) may be contracted to produce or provide for (CLIENT) will be subject to the following:
PROPOSALS/ESTIMATES – For each project, CLIENT will receive a proposal/estimate/quote or retainer arrangement outlining the project specifications and proposed scope of services with billing phases and/or payment terms. Each proposal/estimate/quote will contain a project budget, which includes estimated fees for DESIGNER/DEVELOPER services and separate costs for any estimated out-of-pocket expenses. Retainer clients will be provided services based on requests/directives received from the CLIENT and hours are allocated as appropriate to requests/directives. Revisions, extensive alterations, or a switch in overall objectives or scope of work will affect the initial proposal/estimate, and hours allocated under a retainer arrangement.
We will begin work upon CLIENT’S approval and acceptance of a written proposal/estimate/quote. Client approval (written, emailed, or oral) will constitute an agreement between us. Retainer clients may deliver directives verbally or electronically – with acceptance of services a clear indication of acceptance of retainer fund allocation for services rendered.
PAYMENT – CLIENT agrees to pay DESIGNER/DEVELOPER in accordance with the terms specified in each proposal/estimate/quote or retainer arrangement. On accounts that have not been approved for terms, a non-refundable deposit of 50% of the project cost must be paid before work can begin. On projects that include broadcast, all fees must be paid prior to air date, unless otherwise specified or outlined in proposal/estimate. On projects conducted under retainer agreements, the separate terms of the retainer agreement will outline payment terms. Retainer fees paid are non-refundable. Retainer agreements may be canceled by the client at any time if all debts to EMG under any agreements are paid in full, but no monies are refundable.
Unless otherwise specified, all subsequent balances due are payable upon art or video draft final approval. Interest on past due balances for any EMG agreement or policy is 8% per year, compounded monthly. We reserve the right to refuse completion, delivery or launch of work, or transfer of files until past due balances are paid. DESIGNER/DEVELOPER has the sole right of discretion to waive interest on past due balances.
Proposals/estimates/quotes are valid for only 30 days from the date of presentation. Client requested changes to the original scope of proposal/estimate/quote will be billed additionally at the standard rate of $125/hour. The client will be notified of any price changes and/or additional charges.
EXPENSES – Fees for professional services do not include outside purchases on behalf of CLIENTS such as, but not limited to, printing, stock photography, color or B&W draft printouts, laminating, illustrations, separations, shipping, and handling or courier service. Expenses are itemized on each invoice. Expenses are subject to Missouri sales tax unless a) CLIENT is a nonprofit organization; or b) work is for resale and a resale certificate has been submitted to DESIGNER/DEVELOPER. If consultant or location shoot services are required in out-of-town locations, lodgings, meals, and transportation for crew will be billed at cost. Reimbursement for mileage is calculated at current allowable rates.
REVISIONS AND ALTERATIONS – New work requested by CLIENT and performed by DESIGNER/DEVELOPER after a proposal/estimate/quote has been approved is considered a revision or alteration. If the job scope changes to an extent that substantially alters the specifications described in the original estimate, a proposal revision will be presented, and a revised additional fee agreed upon by both parties before further work proceeds. Alterations and other copy changes requested after layouts or mechanicals are completed are billed at standard hourly rates. Retainer CLIENT funds are allocated per directives received by CLIENT or their representatives at standard hourly rates for all work, revisions, and alterations.
DEADLINES – Knowledge of CLIENT deadlines is essential to provide an accurate estimate. “Rush jobs”, or expenses incurred due to delays on the part of CLIENTS, will result in an additional charge over and above proposal/estimate/quote in the amount of $175/hr. CLIENTS will be advised of these additional charges before they are incurred, and will be presented with the option to proceed.
APPROVAL OF RIGHTS AND USAGE – CLIENT is responsible for all trademark, servicemark, copyright and patent infringement clearances, as well as for arranging, prior to publication, any necessary legal clearance of materials we prepare.
ERRORS AND OMISSIONS – It is the CLIENT’S responsibility to check proofs or website content carefully for accuracy in all respects, ranging from spelling to technical illustrations or content and verbiage. DESIGNER/DEVELOPER is not liable for errors or omissions. CLIENT signature, authorization email, or that of CLIENT’S authorized representative, is required on all mechanicals or artwork prior to release for printing or other implementation.
OVERAGES – On projects requiring print runs, the CLIENT will accept over runs or under runs that do not exceed 10% of the quantity ordered on all jobs. The DESIGNER/DEVELOPER will bill for actual quantity delivered within this tolerance. If the CLIENT requires a guaranteed quantity, the percentage of tolerance must be stated at the time of quotation.
OUTSIDE VENDER PERFORMANCE – DESIGNER/DEVELOPER will take all reasonable precautions to safeguard the property CLIENTS entrust to us. In the absence of negligence on our part, we are not responsible for loss, destruction or damage or unauthorized use by others of such property. We will do our best to ensure quality and timely delivery of all printed pieces and will not be responsible for the loss to CLIENTS through the failure of vendors, media, or other outside entities involved in the project.
If you select your own vendors, other than those recommended by us, you may request that we coordinate their work per project management fee. If at all possible, we will attempt to do so, but we cannot in anyway be held responsible for quality, price, performance or delivery.
LIEN – All materials or property belonging to, or provided by, the CLIENT may be retained as security until all just claims against the CLIENT are satisfied for any EMG agreements.
RIGHTS OF OWNERSHIP – Once a project has been delivered by us and is fully paid for by CLIENT, DESIGNER/DEVELOPER may be requested to assign the reproduction rights of the design/development for the use(s) described in any written, executed “rights of ownership” agreements negotiated and executed at time of acceptance of proposal/estimate/quote. Ownership DOES NOT extend to the right-of-resale of any/all concepts, templates, design elements, customized fonts and image work, custom software or code, used or not used for this project.
According to the Copy right Law of 1976, the rights to all code, software, design and art work, including but not limited to photography and or illustration created by independent photographers or illustrators, retained by DESIGNER/DEVELOPER, or purchased from a stock agency or third party on CLIENT’S behalf, remain with the individual DESIGNER/DEVELOPER, programmer, artist, photographer or illustrator.
Unless a purchase of “All Rights” (A Buyout) is negotiated with DESIGNER/DEVELOPER and/or an authorized representative, you may not use, obtain copies of, or reproduce the code, software, design or the images therein for a purpose other than the one(s) originally stipulated, and you may not claim ownership of same. If you wish to use the design we have created, custom software we have coded, and/or the images within a project for another purpose or project, including a reprint or exhibition, or in the event of changes to company/corporate entity, you must produce an executed “All Rights” agreement and remit any additional fees owed to or negotiated by DESIGNER/DEVELOPER. If printing or other implementation is done through your vendors, you agree to return to us all our original mechanicals and artwork (slides, prints, drawings, separations, etc.) within two weeks, and to provide us with printed samples of each project.
We reserve the right to photograph and/or distribute or publish for our firms promotional and marketing needs any work we create for you, including mock-ups and comprehensive presentations, as samples for our portfolio, firm news letter, brochures, slide presentations and similar media. We agree to store mechanical boards and computer files, backups or disks for a period of 2 months beyond the delivery of a job. Thereupon, we reserve the right to discard them.
TERM AND TERMINATION – The term of this agreement will continue for work in progress until terminated by either of us upon thirty (30) days written notice. If you should direct us at any time to cancel, terminate or “put on hold” any previously authorized purchase, we will promptly do so, provided you hold us harmless for any cost incurred as a result.
Upon termination of this agreement, DESIGNER/DEVELOPER will transfer to CLIENT all property and materials in our control provided CLIENT has paid all monies owed DESIGNER/DEVELOPER under any and all EMG agreements in full. Any custom design/development for which CLIENT has executed an “All Rights” agreement with DESIGNER/DEVELOPER will also be transferred to CLIENT.
CLIENT will indemnify and hold DESIGNER/DEVELOPER harmless for any loss or expense (including attorney ’s fees), and agree to defend DESIGNER/DEVELOPER in any actual suit, claim or action arising in any way from our working relationship. This includes, but is not limited to assertions made against CLIENT and any of its products and services arising from the publication of materials that we prepare and CLIENT approves before publication.
PRODUCTION SCHEDULES – Production schedules will be established and adhered to by both parties, provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, labor trouble or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the Client or the DESIGNER/DEVELOPER. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly and without penalty or refunds.
ADDITIONAL PROVISIONS – The validity and enforceability of this agreement will be interpreted in accordance with the laws of the State of Missouri applicable to agreements entered into and performed in the State of Missouri. This agreement is our entire understanding and may not be modified in any respect except in an executed agreement that specifically negates specific terms in this agreement. Acceptance of proposal/estimate/quote, or payment of retainer for services to be provided indicates full understanding and acceptance of these terms and conditions by all CLIENTS and their authorized representatives.
If we must retain attorneys to collect our invoices, we will be entitled to reasonable attorney’s fees, court costs, and interest at the maximum rate permitted by law.
WEB HOSTING AGREEMENT
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
READ THIS AGREEMENT CAREFULLY BEFORE CONTRACTING WEB HOSTING SERVICES LISTED BELOW.
This Agreement is between EMG Productions, Inc. and its related entities (“EMG”) and you and applies to all the products and services available at http://www.emgproductions.com and http://www.emgwebsites.com, including EMG servers, (collectively, the “Services”; each a “Service”).
This Agreement consists of the terms and conditions below, the specific terms of your billing plan for the Service(s) to which you subscribe, all of which are incorporated herein.
By establishing an account for the Services or using the Services, you agree to be legally bound by this Agreement and to use the Services in compliance with the terms of this Agreement and all applicable federal, state and local laws, rules and regulations. Each Subscriber is subject to these Terms, and by using EMG’s services, network and/or systems (collectively the “Services”), Subscriber agrees to be legally bound by and subject to all terms and conditions contained in these Terms, including as well all usage policies and other policies herein. To the extent not inconsistent therewith, these Terms are also incorporated into the individual service agreement, if any, of each Subscriber.
- Subscribers may view the most current version of these Terms at emgwebsites.com/terms-and-condtions. Any use of the Services by Subscriber, after changes, modifications, additions or deletions to these Terms are posted on the emgwebsites.com website, shall constitute Subscriber’s acceptance of all such changes, additions, modifications or deletions. If a Subscriber does not agree to any such alterations to these Terms, the Subscriber’s sole and exclusive remedy is to cancel the Subscriber’s account as set forth below.
2. TERM OF THIS AGREEMENT
The effective date of this Agreement is the date on which you subscribed to the Services. This Agreement continues until the later date of termination of your Services. Sections 6, 9, 10, 12, 14, 15, 16 and 17 of this Agreement will survive termination of this Agreement.
3. SERVICES NOT INTENDED FOR USE BY COVERED ENTITIES
Unless expressly set forth in the description of the Services on http://www.emgwebsites.com/terms-and-conditions or www.emgproductions.com/terms-and-conditions/ or all subpages thereto, the Services are not intended for use by covered entities or business associates to create, access, transmit, or maintain protected health information that is subject to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
You agree that you have reviewed the descriptions of the Services on http://www.emgwebsites.com/terms-and-conditions/ or www.emgproductions.com/terms-and-conditions/ and their subpages and understand the intended use of the Services that you are purchasing. You also agree that unless a Service description expressly states that the Service is “HIPAA Compliant,” you will not use such Service to create, access, transmit or maintain any protected health information. Any violation of this Section 3 is your sole responsibility. EMG and its affiliates, subsidiaries and licensors will have no liability with respect to your violation of this Section 3.1
4. SUBSCRIPTION INFORMATION
To order and receive any of the Services, you acknowledge that you are 18 years of age or older and either (i) you have legal authority to enter into this Agreement or (ii) represent a corporation, partnership or other legal entity duly formed (and incorporated where applicable) in good standing and you have the legal authority and power to enter into this Agreement on behalf of such entity. You must provide EMG with a valid credit card, debit card or other EMG approved payment methods for the Services and your billing address. You represent that all information you provided during the subscription process is accurate and complete; that you own the domain name used for your account, and that you will update such information with EMG should any of it change; and that you will maintain your website for security purposes with latest updates to all applicable software, themes, plugins, extensions, or other elements that may be used on your website.
EMG reserves the right to verify the accuracy of the information you submit in connection with your subscription for the Services and you consent to such verification.
EMG may accept or reject any potential subscriber to the Services in its sole discretion.
5. BILLING AND PAYMENT
You agree to pay (i) the monthly fees in your billing/hosting plan due in advance for one year the month incurred; (ii) any applicable set-up fees; and (iii) any applicable method of payment fees. Also, you will be responsible for paying all taxes, surcharges, and fees required by any applicable government entity including taxes in connection with any purchases made from your website. All payments will be made in US dollars.
You must provide accurate billing information including legal name, address, telephone number, and report all changes to this information promptly to EMG.
Charges may be billed on or after your billing cycle date to your method of payment on file each year for the Services including any additional charges incurred (e.g. usage, taxes and fees). EMG is not responsible for any fees resulting from charges billed by EMG including, but not limited to, overdrawn accounts or exceeding credit card limits.
For annual subscription billing plans, you will be able to use the Services for any consecutive annual period that has been paid in advance. For example, if your billing cycle begins on the sixth day of the second month, then your payment due date (i.e. the date that the amount of your full annual Service fee, including any and all applicable taxes, must be received by EMG) will be on the fifth day of the second month each year thereafter.
If payment by check has been accepted by EMG, then payments by check must be received by EMG by the due date for annual service renewal. EMG will charge a fee for returned checks from your financial institution.
Delinquent accounts may be suspended or terminated at EMG’s sole discretion; however, charges will continue to accrue until the account is canceled. If you pay your annual Service fee to a third party provider, your account also may be suspended for non-payment if your account is delinquent.
Your account will be automatically inactivated if you fail to keep your site current and up to date regarding any software used on your site for more than ten (10) days.
All charges are considered valid unless disputed in writing within thirty (30) days of the billing date and mailed to:
EMG Productions, Inc.
RR 4 Box 1775
Marble Hill, MO 63764
Adjustments will not be made for charges that are disputed more than thirty (30) days after the billing date.
If you change from your existing plan to another plan prior to the 12-month term, you will be charged for any differences in fee which will be payable upon receipt. The new plan will start immediately and the new annual fee will take effect as of the original renewal date.
EMG reserves the right (i) to change the fees associated with your Services and institute new fees upon email notice at least 10 days prior to the effective date of such new monthly fee to your Contact Email Address and (ii) to change the fees associated with your account upon email notice at least 10 days prior to the effective date of such new fee to your Contact Email Address or your billing email address if different from your Contact Email address.
6. CANCELLATION AND TERMINATION
You may cancel your Services only as follows:
Mail Cancellation: Send registered or certified mail, return receipt requested to:
EMG Productions, Inc.
Cancel (Name of the Services being canceled)
RR 4 Box 1775
Marble Hill, MO 63764
EMG does NOT accept cancellations by email.
EMG will issue a confirmation number to you by email as proof of cancellation of your Services. Accounts are set to close at the end of the current billing period.
The annual payment billing plan has a twelve (12) month commitment. If you cancel prior to completing the twelve (12) payments, EMG will not refund any amounts for any remaining time on the plan.
EMG does not grant refunds or credits for any prior use including partial use of the Service upon cancellation, and EMG does not issue pro rata refunds for fees paid in advance.
Upon any termination by you, EMG will permit you to download or otherwise copy electronic materials, data, and files comprising your website for which you maintain licenses for use, on EMG’s servers until the end of the current billing cycle provided all monies owed EMG under any agreements are paid in full. However, you may request immediate removal of such information. EMG will try to satisfy your request but will not be under an obligation to do so. EMG will not be liable for such deleted electronic materials, data, files or emails. EMG reserves the right to retain certain technical information about your website such as logs and statistics for a period of time as needed for technical and legal reasons.
EMG may terminate your account for the Services at any time for any reason, including, without limitation, if (i) your account is delinquent because charges on your method of payment were refused for any reason, (ii) you failed to make payment when due or you did not provide EMG with payment before the existing expiration date; (iii) EMG, in its sole discretion, believes you have breached this Agreement or any other EMG agreements or policies including the responsibility to maintain updates to software used on your website; (iv) you owe monies to EMG for web design or development services rendered and payment is delinquent; or (v) your use of a Service is prohibited by law. A termination notice will be sent to you via (i) Contact Email Address or (ii) U.S. Mail to the billing address for your EMG account. Accounts canceled by EMG will close at the end of the current billing period unless canceled for non-compliance with updating policies or payment delinquency of any kind, in which case accounts may at EMG’s sole discretion either be suspended pending receipt of payments due or necessary updates; or terminated without notice. Upon termination by EMG, and under its sole discretion, EMG may immediately remove your website, including all of your materials, data, files, and emails from EMG’s servers and you will have no right to copy or download such information. EMG retains the right to review all materials, data, files, and emails on EMG’s servers if your account is delinquent or terminated for delinquency of payment on this Agreement or other EMG agreements or policies. EMG retains the right to liquidate any materials, data, content, files, or code on EMG’s servers if your account is terminated for delinquency of payment on this Agreement or other EMG agreements or policies.
If your account is canceled by you or terminated by EMG, it cannot be reactivated. If it is suspended for noncompliance, contact EMG to resolve the issue, and once resolved – the account will be reactivated.
7. YOUR ACCOUNT, PASSWORD, AND SECURITY
Upon registration, you will receive a username, password, and other account information. You are responsible for (i) maintaining the confidentiality of both your username, password and other account information, and (ii) the use of your Services by any person who uses your username and password to access the Services, whether or not you specifically authorize such person’s use. You must notify EMG immediately upon discovering any unauthorized use of your Services or other breaches of security. Usernames, passwords, email addresses and IP addresses are EMG’s property and EMG may review, alter or replace them at any time.
The EMG Parties, as defined in Section 9, will not be liable for any loss or damage from your failure to comply with these security obligations. You acknowledge and agree that under no circumstances will the EMG Parties be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
You are solely responsible for the computer and software necessary to use the Services including responsibility for (i) maintaining the security of your computer and data, including protection of your username and password, (ii) the management of your information on your website including back up and restoration of your data, (iii) the encryption of data, and (iii) back-up and restoration of your computer and data. EMG recommends that you use anti-virus, anti-spyware and firewall software including appropriately updating such software.
8. MONITORING THE SERVICES AND BACKUPS
EMG may immediately remove your material or information from EMG’s servers, in whole or in part, if EMG reasonably believes it infringes another’s property rights or violates EMG agreements or policies, or any laws or regulations, or if you fail to maintain proper updates to software used on your website.
When and if EMG becomes aware of any violation of these Terms, EMG may take any lawful action, and in the event of illegal activity, will take action, to stop or correct such violation, including, but not limited to, shutting down a website, denying access to the Services or to the Internet via EMG, and/or removing non-complying information. In addition, EMG may take any lawful action against a Subscriber or a subscriber, patron, customer, invitee, visitor, or guest of such Subscriber because of the activities of such subscriber, patron, customer, invitee, visitor, or guest. EMG reserves the right to take any such action even though such action may affect other subscribers, patrons, customers, invitees, visitors, or guests of the Subscriber. EMG may disclose any information in its possession, including, without limitation, information about Subscribers, internet transmissions and website activity in order to comply with a court order, subpoena, summons, discovery request, warrant, statute, regulation, governmental request, or other legal process to protect EMG or others from harm, and/or to ensure the proper operation of and payment for the Services. EMG.com has no obligation to notify any person, including the Subscriber about whom information is sought, that EMG has provided the information.
EMG will use commercially reasonable efforts to schedule any maintenance outages in a way that minimizes the impact on subscribers; however, EMG cannot guarantee that your Services will not be interrupted and cannot always provide advance notice of such outages.
For its own operational efficiencies and purposes, EMG from time to time backs up data on its servers, but is under no obligation or duty to Subscriber to do so under these Terms. IT IS SOLELY SUBSCRIBER’S DUTY AND RESPONSIBILITY TO BACKUP SUBSCRIBER’S FILES AND DATA ON EMG SERVERS, AND under no circumstance will EMG be liable to anyone FOR DAMAGES OF ANY KIND under any legal theory for loss of Subscriber FILES AND/or data on any EMG server. EMG will not attempt to back up accounts that exceed 50,000 files or 30 Gigs of space for any reason.
9. DISCLAIMERS AND LIMITATIONS OF LIABILITY
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EMG AND ITS SUPPLIERS AND VENDORS DO NOT WARRANT THAT (I) THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS OR (II) THE ACCURACY, SPELLING OR GRAMMAR OF ANY OF THE CONTENT ON YOUR WEBSITE. EMG AND ITS SUPPLIERS AND VENDORS MAKE NO EXPRESS WARRANTIES AND WAIVE ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NONINFRINGEMENT, PRODUCT, EQUIPMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
EMG, ITS OFFICERS, DIRECTORS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, RESELLERS, SUPPLIERS AND VENDORS (COLLECTIVELY “EMG PARTIES”) WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, ACTIONS, SUITS, COSTS OR DAMAGES, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, IN CONNECTION WITH THE SERVICES, DIRECTLY OR INDIRECTLY, INCLUDING ARISING FROM (I) YOUR WEBSITE (INCLUDING ALL CONTENT AND ANY END USERS’ USE OF YOUR WEBSITE; (II) OTHER PARTIES ACCESSING YOUR DEVICE; (III) SECURITY BREACHES; (IV) EAVESDROPPING; DENIAL OF SERVICE ATTACKS; INTERCEPTION OF TRAFFIC SENT OR RECEIVED USING THE SERVICE; (V) INTERRUPTIONS (INCLUDING DUE TO MAINTENANCE) OF THE SERVICES; (VI) YOUR RELIANCE ON OR USE OR MISUSE OF THE SERVICES; (VII) THE MISTAKES, OMISSION, INTERRUPTIONS, DELETION OF FILES OR DATA (INCLUDING PERSONALLY-IDENTIFIABLE INFORMATION), ERRORS OR DEFECTS, DELAYS OR ERRORS IN OPERATION, TRANSMISSIONS, SERVICE INTERRUPTIONS, OR ANY FAILURE OF PERFORMANCE OF THE SERVICES; (VIII) INABILITY TO ACCESS THE SERVICES DUE TO CONNECTIONS, INTERNET ROUTING, HACKING, SPAMMING OR ANY OTHER CIRCUMSTANCE OUTSIDE THE CONTROL OF THE EMG PARTIES; OR (IX) THE USE OF THE SERVICES BY YOU OR A THIRD PARTY THAT INFRINGES A THIRD PARTY’S COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PRIVACY, OR OTHER INTELLECTUAL PROPERTY RIGHTS, PROPRIETARY RIGHTS OR CONTRACTUAL RIGHTS. THE EMG PARTIES WILL NOT BE OBLIGATED TO COMPENSATE YOU FOR ANY DOWNTIME OF YOUR WEBSITE, WHETHER CAUSED BY YOU OR AN EMG PARTY.
EMG SHALL NOT BE LIABLE FOR NONPERFORMANCE OR DELAY IN PERFORMANCE CAUSED BY ANY REASON, WHETHER WITHIN OR OUTSIDE OF ITS CONTROL. IN NO EVENT SHALL EMG BE LIABLE UNDER CONTRACT, NEGLIGENCE, TORT, CONVERSION, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, IP RIGHTS HOLDER INFRINGEMENT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOSS OF DATA OR INFORMATION OF ANY KIND OR LOSS OF BUSINESS GOODWILL OR OPPORTUNITY) WHETHER OR NOT EMG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
EMG SHALL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. EMG’S ENTIRE LIABILITY AND SUBSCRIBER’S EXCLUSIVE REMEDY WITH RESPECT TO ANY USE OF THE SERVICES IS THE CANCELLATION OF SUBSCRIBER’S ACCOUNT AS SET FORTH HEREIN.
IN NO EVENT SHALL EMG’S LIABILITY TO YOU, THE SUBSCRIBER, EXCEED THE GREATER OF ONE DOLLAR ($1.00) OR ANY AMOUNTS ACTUALLY PAID IN CASH BY YOU, THE SUBSCRIBER, TO EMG FOR THE PRIOR ONE MONTH PERIOD. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR OUT OF THE SERVICES MAY BE BROUGHT BY YOU, THE SUBSCRIBER, MORE THAN ONE YEAR AFTER THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. SOME JURISDICTIONS DO NOT ALLOW A LIMITATION ON LIABILITY FOR NEGLIGENCE THAT CAUSES DEATH OR PERSONAL INJURY AND, IN SUCH JURISDICTIONS, EMG’S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
THE FOREGOING LIMITATIONS APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE EMG PARTIES WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO THE CAUSE OF ACTION AGAINST ANY EMG PARTY IN CONTRACT, TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR EXCLUSIVE AND ONLY REMEDIES UNDER THIS AGREEMENT ARE AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
THE CUMULATIVE LIABILITY OF ANY EMG PARTY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE SERVICES WILL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID DURING THE THREE MONTHS IMMEDIATELY PRECEDING A CLAIM.
YOU MAY HAVE OTHER RIGHTS UNDER CERTAIN LAWS IN CERTAIN STATES WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
You agree to defend, indemnify and hold the EMG Parties harmless from and against all third party claims, demands, suits, actions, judgments, losses, costs, damages including, but not limited to, direct, indirect and consequential damages, attorney’s fees and expenses that an EMG Party may sustain or incur by reason of your use or misuse of the Services or the use or misuse of the Services by anyone else through your account including, but not limited to, use or misuse of the Services (i) in violation of applicable laws or regulations or the terms of this Agreement or any other EMG agreement or policy; (ii) in connection with any claims for infringement of any intellectual property rights arising from or in connection with such use or misuse; or (iii) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible property (including data).
11. GENERAL LICENSE AND USE OF THE SERVICES
The names of EMG, the Services and other EMG products and services, and their related logos, are trademarks of EMG (“EMG Marks”). Except for the “powered by EMG” logo on the bottom of the pages of your website hosted by EMG, if applicable, you agree not use any EMG Marks on your website or anywhere without the prior written permission of EMG.
You agree to use the Services only for lawful purposes and in compliance with the EMG policies. You are solely responsible for the content, materials, files, data and links on your website (“Content on Your Website”). You will not use the network resources of EMG to impersonate another person or misrepresent authorization to act on behalf of others or EMG. Any emails sent in connection with your Services must correctly identify the sender. Violations of any of these terms may result in termination of your use of the Services with or without notice.
12. ELECTRONIC COMMUNICATIONS AND CELL PHONE CALLING
You consent to receive notices, documents, disclosures and other communications from EMG (“Communications”) in an electronic format to your Contact Email Address and agree that the Communications provided to you by EMG electronically will be deemed a writing. If you do not want to consent to receive Communications from EMG electronically or if you withdraw such consent, then you must stop using the Services. The withdrawal of your consent will not affect the legal validity and enforceability of any electronic Communications provided or business transacted between EMG and you prior to the time you withdraw your consent.
In addition, you hereby agree that your acceptance of this Agreement constitutes your written consent: (i) to EMG calling you at the phone number that you provided EMG in connection with your subscription to or use of the Services and (ii) if you provided EMG with a mobile or cellular phone number, to EMG also texting you at such mobile or cellular phone number in connection with your subscription to or use of the Services.
13. CUSTOMER AND TECHNICAL SUPPORT
For customer support or billing questions, email EMG at email@example.com.
EMG provides technical support in connection with the EMG Web Hosting Service under completely separate agreement and billing. Under no circumstances does web hosting imply that EMG is obligated in any manner to provide technical support for your website.
14. GOVERNING LAW
This Agreement is governed by Missouri law without regard to conflict of law provisions.
15. DISPUTE RESOLUTION BY BINDING ARBITRATION (INCLUDING IMPORTANT INFORMATION FOR CALIFORNIA RESIDENTS)
Most subscriber concerns can be resolved by communication through firstname.lastname@example.org. If EMG is unable to resolve your complaint to your satisfaction (or if EMG has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
15.2 Agreement to Arbitrate
EMG and you agree to resolve all disputes and claims between us through binding arbitration by the American Arbitration Association (“AAA”). This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
Claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
Claims that may arise after the termination of this Agreement.
References to “EMG,” “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Services under this Agreement or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court rather than by arbitration if the claim qualifies for small claims court in a location where jurisdiction and venue over EMG and you is proper. This agreement to arbitrate does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into this Agreement, you and EMG are each waiving the right to a trial by jury or to participate in a class action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this provision.
15.3 Informal Dispute Resolution Prior to Arbitration
15.3(1) Notice of Dispute
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). A Notice to EMG should be addressed to: EMG Productions, Inc., RR 4 Box 1775, Marble Hill, Missouri 63764 (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). A Notice to you will be addressed to the billing address that EMG has on file for you.
15.3(2) Settlement Proposals
The amount of any settlement offer made by EMG or you will not be disclosed to the arbitrator in any arbitration between us until after the arbitrator determines the amount, if any, to which you or EMG is entitled.
15.3(3) Failure to Reach Resolution
If EMG and you do not reach an agreement to resolve the claim within 45 days after the Notice is received, you or EMG may commence an arbitration proceeding.
15.4 Commencement of Arbitration
You may initiate an arbitration by filing a claim form and paying the filing fee with the AAA and sending a copy of the claim form to EMG at the Notice Address. You can access a claim form and directions for filing at the website for AAA, http://www.adr.org.
15.5 Arbitration Procedures
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at http://www.adr.org, or by calling the AAA at 1-800-778-7879. One arbitrator, who is selected under the AAA Rules, will conduct the arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for a court to decide. Unless EMG and you agree otherwise, any arbitration hearings will take place in the county of EMG’s business address. The right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
If an award issued by the arbitrator exceeds $75,000, either party can appeal that award to a three-arbitrator panel administered by the AAA by a written notice of appeal filed within thirty (30) days from the date of entry of the written arbitration award. The members of the three-arbitrator panel will be selected according to the rules of the AAA. The AAA will then notify the other party that the award has been appealed. The three-arbitrator panel will issue its decision within one hundred and twenty (120) days of the date of the appealing party’s notice of appeal. The decision of the three-arbitrator panel will be final and binding, except for any appellate right which exists under the FAA. If an award issued by the arbitrator does not exceed $75,000, any appeal rights from the award will be governed by the FAA.
15.7 Arbitration Fees
Except as otherwise provided for herein, you will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then you agree to reimburse EMG for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
15.8 Awards and Attorney’s Fees
If the arbitrator issues you an award that is greater than the value of EMG’s last written settlement offer made before an arbitrator was selected, or if the arbitrator issues you an award and EMG made no settlement offer, then EMG will pay you the amount of the award, and pay your attorney, if any, the amount of attorney’s fees incurred, and reimburse any expenses (including expert witness fees and costs) that your attorney, if any, reasonably accrues and documents with specificity for investigating, preparing, and pursuing your claim in arbitration (the “Attorney Fee Award”).
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses, and the Attorney Fee Award at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The right to attorneys’ fees and expenses discussed in this Section 17.8 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or expenses. Under some laws EMG may have the right to an award of attorney’s fees and expenses if it prevails in an arbitration, and EMG will seek such an award.
15.9 Waiver of Class Actions; Limits of Scope of Arbitrator’s Authority
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EMG AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and EMG agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void and all disputes will be heard by a court.
15.10 Future Changes to Agreement to Arbitrate
Notwithstanding any provision in this Agreement to the contrary, if EMG makes any future change to this arbitration provision (other than a change to the Notice Address) during the term of your subscription with EMG, you may reject any such change by sending us written notice to the Notice Address postmarked within 30 days of the date of the change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language in this Section 17 of this Version January 1, 2014.
This Section 17 will survive the termination of your Services with EMG.
16. REVISIONS TO THIS AGREEMENT
EMG may revise, amend, or modify this Agreement at any time by posting the revised version of this Agreement on the EMG Website located at http://www.emgwebsites.com. The revised version will be effective on the date that it is posted. Your continued use of the Services after the date of the revised version constitutes your acceptance of all of the revisions. If you do not agree to the revisions in the revised version, your sole and exclusive remedy will be to terminate your account and use of the Services.
You may not assign your rights or delegate any of your duties under this Agreement without the prior written consent of EMG, and any attempted assignment or delegation without such consent will be void. If one or more provisions of this Agreement are held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired thereby. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration provision in Section 15; if that prohibition is found to be unenforceable, the entire DISPUTE RESOLUTION BY BINDING ARBITRATION provision (but only the DISPUTE RESOLUTION BY BINDING ARBITRATION provision) will be null and void and the dispute will be heard by a court. EMG may amend or replace such unenforceable provision with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of EMG as reflected in the original provision. Nothing in this Agreement or in the understanding of the parties confers upon the parties the status of agency, partnership, or other form of joint enterprise between the parties. EMG may subcontract any work, obligations or other performance required of EMG under this Agreement without your consent. EMG will not be liable for delays, damages or failures in performance because of causes beyond its reasonable control, including, but not limited to, acts of a government in its sovereign capacity, acts of war, terrorism, acts of a public enemy, fires, earthquakes, acts of God, labor disputes, strikes, work slow-downs or other labor-related activity.
IF YOU, FOR YOURSELF OR ON BEHALF OF ONE OR MORE PERSONS YOU ARE REPRESENTING WITH RESPECT TO EMG SERVICES, DO NOT AGREE TO ANY OF THE FOREGOING TERMS, YOU MUST, FOR YOURSELF AND ON BEHALF ANY SUCH PERSON(S), DISCONTINUE YOUR USE OF THE SERVICES, AND, IF YOU ARE ALREADY A SUBSCRIBER, CANCEL YOUR EMG ACCOUNT. ANY CONTINUATION BY YOU IN USING THE SERVICES CONSTITUTES FOR YOU AND THOSE REPRESENTED BY YOU AN EXPRESS AFFIRMATION AND COMMITMENT TO BE (OR TO CONTINUE TO BE, AS APPLICABLE) LEGALLY BOUND BY AND TO COMPLY WITH ALL OF THESE TERMS.
Effective Date: January 5, 2005
Updated: June 1, 2018